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Preliminary Injunction Form Foreclosure In New York
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For homeowners facing immediate foreclosure, filing for bankruptcy or obtaining a temporary restraining order (TRO) can be effective solutions. Chapter 7 or Chapter 13 bankruptcy creates an “automatic stay,” which temporarily halts all collection activities, including foreclosure auctions.
Instead, the homeowner must file their own lawsuit to seek a temporary restraining order, a preliminary injunction, and a permanent injunction against the foreclosure.
It takes at least 6 to 8 months for a fore- closure lawsuit to go from summons and complaint to auction — even if you ignore the court case. In reality, however, the process is taking much longer. If you file an Answer and appear at the mandatory settlement conference, it is taking lenders 1 to 3 years to foreclose.
File for Bankruptcy to Stop the Foreclosure. If a foreclosure sale is scheduled to occur in the next day or so, the best way to stop the sale immediately is by filing for bankruptcy.
You'll need to include a motion for a temporary restraining order (TRO) and preliminary injunction to enjoin (stop) a foreclosure sale while your claims are being litigated. Usually, homeowners also ask the court for a permanent injunction.
New York is a judicial foreclosure state, which means that the lender has to sue the borrower in order to enforce their rights under the mortgage and note. If the lender wins the lawsuit, it obtains a judgment from the court, which allows the lender to sell the property at an auction.
Set forth in Section 1301 of the New York Real Property Actions and Proceedings Law (NYRPAPL Article 13), the one action rule provides that, “While an action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, ...
For Residential Cases. Lender must mail you information on getting help at least 90 days before starting a court case. Lender asks court for a judgment on default and to appoint a Referee to decide the amount you owe and write a report. Lender asks court to accept the Referee's findings. Judge orders sale of your home.
It takes at least 6 to 8 months for a fore- closure lawsuit to go from summons and complaint to auction — even if you ignore the court case. In reality, however, the process is taking much longer. If you file an Answer and appear at the mandatory settlement conference, it is taking lenders 1 to 3 years to foreclose.
The new law does not disturb New York's six-year statute of limitations on mortgage foreclosure actions. It simply restores a common-sense principle: no party may unilaterally stop and restart the statute of limitations to revive what would otherwise be a time-barred action.